How to Become a Guardian of a Mentally Disabled Child in Texas

By Amy Newman

Parents are the natural guardians of their children ("guardian of the person"), and they are authorized to make all decisions relating to the child's health, education and overall well-being until the child turns 18. Parents are not automatically in charge of a child's finances ("guardian of the child's estate"). This means that if a child receives a large sum of money, such as an inheritance, or if a disabled child receives a medical malpractice settlement, the court must appoint a guardian to manage the funds until the child turns 18. The procedure for becoming a child’s guardian in Texas involves taking certain steps, usually in conjunction with advice and assistance from a licensed attorney.

Step 1

File a motion with the court seeking appointment as guardian. The motion should be filed in the statutory probate court, county court at law or other statutory court exercising the jurisdiction of a probate court or, if there is no such court, then in the county court. The motion must be filed in the jurisdiction where the child resides. If one parent has died, the child's surviving parent has first priority for appointment and would not need to seek formal appointment as guardian of the child's person. If both parents are deceased and failed to name a guardian in their will, or if one or both parents are unwilling or unable to serve, the nearest ascendant in the family line, such as an aunt, uncle or grandparent, has second priority for appointment. If no family member is willing or able to act as guardian, a disinterested non-family member or guardianship program may petition the court for appointment.

Step 2

State specifically why a guardian is necessary and why you are the appropriate person. A minor under age 18 is automatically deemed incompetent and in need of a guardian, and the appointment may be made on that basis alone. If you are seeking guardianship of the child's estate, you must explain the source of the funds and how you intend to manage them. The motion should include supporting documentation, if available; for example, a copy of the parent's will appointing you as guardian, documents showing that the child's parent has been declared incompetent and therefore unable to care for the child, or financial statements showing the value of the child's estate.

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Step 3

Mail a copy of the application for guardianship by registered or certified mail, return receipt requested, to all individuals required by law to be notified of the proposed guardianship. Submit a signed affidavit to the court stating that such notice has been provided. Under Texas law, notice of the application for guardianship must be mailed to: 1) all adult siblings of the child; 2) the administrator of a nursing home or similar facility in which the minor resides; 3) the operator of a residential facility in which the minor resides; 4) a person designated to serve as guardian of the minor in the probated will of the child’s last surviving parent; 5) a person designated to serve as guardian of the minor by a written declaration of the child’s last surviving parent, if the parent is deceased and the applicant knows of the existence of the declaration; and 6) each person named as next of kin in the application for guardianship.

Step 4

Attend any hearings the court schedules to rule on the motion. During the hearing, explain to the court in more detail why a guardianship is necessary and why you are the appropriate person to serve. You will be given an opportunity to call witnesses and provide other evidence that supports your appointment. Anyone who opposes the guardianship may attend and argue against your appointment.

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Legal Guardianship of a Minor in Ohio
 

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How to Write an Affidavit for Guardianship

Guardianship is a legal relationship in which an adult is responsible for the care and decision-making of someone who cannot care for himself. Although the term "guardian" is most frequently used with regard to being the guardian of children, guardianship affidavits are typically reserved for professionals, such as doctors and social workers, who are petitioning to have a guardian appointed for elderly or disabled persons. However, a guardianship affidavit may also be used by witnesses in court proceedings, particularly child custody disputes. The specific wording you use in your affidavit will vary depending upon your situation and jurisdiction. If you're not sure what you need to convey, consult a lawyer or your local laws.

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A guardian and custodian become necessary in the event a child's parents pass away, leaving assets and an inheritance behind. Minor children cannot inherit money or assets outright, so a custodian is named or appointed to manage the assets until the child reaches an appropriate age. A guardian, in contrast, is responsible for overseeing the child's day-to-day physical and financial well-being. These positions may be named in a parent's will or appointed by the court.

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A minor in North Carolina needs a guardian if his parents are dead or unable to take care of him. Occasionally, a guardian is needed to manage a minor's assets. A guardian is responsible for taking care of the minor or his property with the same diligence as a natural parent, since a minor can't make certain decisions or perform some actions for himself. Guardianship of a minor in North Carolina usually continues until the minor, also known as a ward, turns 18.

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